How Judges Think.

• Author: Sutton, Jeffrey S.
• Position: Book review

HOW JUDGES THINK. By Richard A. Posner. Cambridge and London: Harvard University Press. 2008. Pp. 1, 387. $29.95.

INTRODUCTION

I was eager to enter the judiciary. I liked the title: federal judge. I liked the job security: life tenure. And I could tolerate the pay: the same as Richard Posner's. That, indeed, may have been the most flattering part of the opportunity--that I could hold the same title and have the same pay grade as one of America's most stunning legal minds. Don't think I didn't mention it when I had the chance.

There is so much to admire about Judge Posner (1)--his lively pen, his curiosity, his energy, his apparent understanding of: everything. He has written 53 books, (2) more than 168 articles, thousands of opinions and numerous blog entries with Nobel Prize-winning economist Gary Becker. The output is hard to keep up with, as is the dizzying array of topics he covers--everything from economics (3) to the Clinton impeachment (4) to 9/11 (5) to sex (6) to literature (7) to public health (8) to aging (9)--sometimes directly related to the law, sometimes not.

What interests me most about Posner is that he is a judge who has left a deep imprint on American law, frequently including decisions of the United States Supreme Court. I often look to him for insights in resolving difficult cases of my own, telling my clerks, "See if Posner has written anything on all topic." Other judges, I suspect, do the same thing, and if not they should. Few people in Illinois, Indiana, and Wisconsin, I fear, know how lucky they are that President Reagan nominated Posner (and his equally impressive colleague, Frank Easterbrook) to the Seventh Circuit in the early 1980s.

All of this made me look forward to reading Posner's book with the alluring title, How Judges Think. It was not what I expected, however. One theme of the book admirably covers the topic suggested by its title--how do judges decide cases and what types of things influence them?--and I will offer thoughts of my own on the topic in a few pages. But two other themes run through the book: (1) an account of judging that treats the judicial branch as "politics" by another name; and (2) a plea to embrace Posner's school of judicial thinking ("pragmatism") along with a bill of particulars against its rival ("legalism"). I cannot resist saying a few words at the outset about these other themes before turning to my observations about judicial thinking.

1. ARE JUDGES POLITICIANS IN ROBES?

   Throughout the book, Posner talks about the political nature of judging and, most unabashedly, about the political nature of judging at the United States Supreme Court. Consider: "judging is 'political'" (p. 369); "[e]vidence of the powerful influence of politics on constitutional adjudication in the Supreme Court lies everywhere at hand" (pp. 277-78); "the reasons for the legislative character of much American judging lie so deep in our political and legal systems and our culture that no feasible reforms could alter it" (p. 15); "judicial philosophies have little causal efficacy. They do not weaken the force of political preferences" (p. 346); "[j]udges like to refer to [the other two branches] as the 'political branches,' as if the federal judiciary itself were not a politically powerful branch of government" (p. 287); "[e]ven if judges wanted to forswear any legislative, any political, role and be merely the 'oracles' of the law, transmitting directives rather than directing, they could not do so in the conditions in which they find themselves" (p. 372); and "a more illuminating description of the Justices of the U.S. Supreme Court, particularly when they are deciding issues of constitutional law, is that they are political judges" (p. 269). (10)

   Those are strong words, bound to provoke a defensive reaction. And they have--by several judges. (11) Add me to the list.

   These are uneasy times in the American judiciary. Whether nominated by Republican or Democratic presidents, federal judicial nominees face similar criticisms--that they will impose their political will in deciding cases and that they will do so on the issues that matter most to Americans. State elections for judges have not helped matters, as interest groups have spent millions in advertising dollars to advance similar themes. This feature of the modern judicial-selection process may be an unavoidable response to the role of the judiciary in resolving so many of today's most pressing debates--and some may even consider it a healthy response. But when these critiques fill the air waves, it is easy to worry about their effect: will they prompt the public to wonder whether this judge or that one is politically motivated or, worse, to wonder whether they all are? The judiciary is not well equipped to respond to these attacks. As every civics student learns, the Third Branch has no purse to sustain itself and no sword to enforce its rulings. Force of reasoning is all there is to preserve the public's trust in the judiciary, a task made more difficult by two thankless (and wearying) demands of judging: (1) judges often are called upon to issue politically unpopular decisions; and (2) even when that is not the case, judges invariably must allocate disappointment to half of the parties that appear before them. One reason that American citizens nonetheless accept these decisions, even when they disagree with them, is that they perceive judges as being apolitical--as deciding cases based on something beyond themselves and beyond their own policy preferences. The increasingly public nature of the confirmation and selection processes for judges--and the implicit criticisms of the judiciary that come with them--have chipped away at that trust. Posner may be fight that some cases test even the most earnest efforts at neutral judging, but loose claims that "judging is 'political'" (p. 369) add fuel to this fire at a time when the judiciary least can afford it.

   This risk goes hand in hand with a similar, though equally misleading, perception left with many students by the end of law school. Professors generally do not teach the 9-0 decisions of the Supreme Court or the 3-0 decisions of the courts of appeals--for the same reason that most authors do not write about conventional people or predictable events. They are less interesting, and division sparks class discussions in a way that unanimity does not. Professors instead teach the 5-4 and 2-1 decisions, which frequently involve the most difficult statutory and constitutional questions, the most indeterminate legal issues, the ones most likely to leave the impression (fair or not) that the policy preferences of the judges--their "politics" (p. 369), as Posner provocatively puts it--enter the mix, whether consciously or not. After being fed a three-year diet of these cases, earnest and cynical students alike are apt to wonder whether neutral arbiters exist. But these are the rare cases, not the ones judges decide day to day. And students too rarely learn the difference--that the difficulties, even indeterminacy, of such cases are atypical, even at the Supreme Court, where 33% of the cases were decided 9-0 in the October 2008 term and another 18% were decided by lopsided 8-1 or 7-2 margins. (12) Unanimity is even more prevalent at the courts of appeals, where judges dissent in just 3% of the cases. (13)

   Is there not a better way to make Posner's point? Say: that in the most difficult cases it is fair to wonder what influences judges and to worry that policy preferences make a difference? If that is all he is saying, he has a point, though it has been my experience that a series of internal and external judicial constraints go a long way to minimize the risk. To the extent he means to say that politics regularly makes a difference in judicial decisions, he is wrong--and, as Dean Levi (formerly Judge Levi) suggests, he is engaging in "armchair empiricism." (14) Judge Edwards and Michael A. Livermore have demonstrated that empirical studies "do not show that a substantial percentage of published federal appellate cases are decided on political or ideological grounds (as crudely defined)." (15)

   Posner likewise overstates his case in maintaining that it is "naive" (p. 256) to believe that there are right answers to legal questions. (16) Not only does this risk misleading young judges, law clerks, and advocates, but it also is false in the main* The bench is too diverse, yet its decisions too uniform, to think that judges are ink blotting their way through the docket. This perspective also enables, if not encourages, judges to minimize the task at hand. Why work at answering a difficult legal problem correctly if it is a fool's errand, doomed to turn on conscious and unconscious policy preferences no matter how much effort the judge brings to the task?

   Think of it another way: if there are no such things as right answers, there must be no such things as mistakes. But judges, all judges, make mistakes, and Posner must think so. Else, why has he devoted a career to correcting them? Of all judges who should care about developing neutral answers to legal questions, appellate judges should care the most. Telling a district court judge that her year-long handling of a case was all for naught should turn on more than the political leanings of an appellate judge or the composition of the panel. It is no compliment when district court judges or litigants suggest otherwise. The goal is to disprove the suggestion, not to succumb to it.

   And what if the American people make a mistake by enacting (through their political representatives) an unconstitutional law? Do we not owe it to them to show that something beyond policy preferences requires the invalidation of the law? A premise of Marbury v. Madison is that judges have a comparative advantage in resolving legal disputes, (17) not that they have a comparative advantage in resolving all disputes that arise in American government.

   ...